How to File a Complaint Challenging a Faulty Environmental Impact Statement and How to Litigate in Federal Court

Prepared by:
The Community Environmental Legal Defense Fund (CELDF)
Thomas Linzey, Esq.

"On Our Own Terms: Moving Into the Courts on Behalf of the Environmental and Social Justice Movements."

Finding Statutes, CaseLaw, and Regulations: A Primer

Statutes

Pennsylvania Statutes can be found in the Pennsylvania section of most law libraries, including Dickinson in Carlisle and Widener Law School in Harrisburg. The statutes are compiled by Purdon's and the subject matter will be listed on the spine of the book. Citations to Pennsylvania Statutes will look like this: 12 Pa. Stat. Ann. ¤4331. This will guide you to the volume number (12) and the section number (4331).

Pennsylvania Statutes are also undergoing a new compilation, so you may be directed to a citation that looks like this: 13 Pa. Cons. Stat. ¤421. This directs you to the new codification which is the Pennsylvania Consolidated Statutes section. Once again, the volume number is given first, and then the section number.

Remember to look in the pocket part of the statutory compilations, which will be found in the back. These are the updates to the books, and may contain some additional, new information that may be helpful to you - such as new cases that have been decided, or amendments to the statute that you are researching.

CaseLaw

Most of the Pennsylvania court cases will be found in one of two places, depending upon the court that you are in:

(1) If you are attempting to find a federal court case, you will locate it under either the Federal Supplement or the Federal Reporter. Both of these also have a second edition, and the citation to all of these will look like this: (a) Federal Reporter = 131 F. 23, (b) Federal Reporter Second Edition = 131 F.2d 23, (c) Federal Supplement = 131 F.Supp. 23.

(2) Pennsylvania state courts report their cases to the Pennsylvania Reporters and to the Atlantic and Atlantic 2nd Edition Reporters. These citations will look like this: (a) Atlantic = 131 A. 23, (b) Atlantic 2nd Edition = 131 A.2d 23

Where do I find these Case Reporters?

The Atlantic Reporter will be located with the other "Regional" court reporters, which include the Northwest Reporter (N.W.), the Southeast Reporter (S.E.), etc. The Pennsylvania reporters will be located in the Pennsylvania section, and the Federal Reporters will be located near the Supreme Court reporters in the law library.

Regulations

Regulations, promulgated by agencies under various statutes, carry the force of law. These regulations must be promulgated (passed) in a certain way, with a certain time schedule, which is established within the Administrative Procedure Act.

All "proposed" regulations (before the regulation becomes final), must be published in the Federal Register, which is published daily by the federal government. This booklet contains all the notices of proposed rulemaking (regulation-making) of all of the agencies of the federal government. Usually, a proposed rule (regulation) will be announced and then a comment period will be instituted to allow the public to comment on the rule.

Once finalized, the regulation becomes law and can then be found within the Code of Federal Regulations (known as "CFR"). The regulations are categorized similar to cases, in that a citation will refer you back to "12 CFR ¤1232", which would simply mean volume 12 of the CFR and section 1232 of that volume.

Most of the environmental regulations, which were promulgated under NEPA, ESA, and the other important statutes, can be found in the CFR. The regulations may be, of course, hopelessly confusing to attempt to read at the library. The best recourse is to copy the section and bring it home for more comfortable reading. These regulatory sections may also be important when discussing the matter with agency officials, because you will be able to point directly to the regulatory section in question.

Pennsylvania Regulations

Regulations to be promulgated and decisions to be made by state agencies (including permitting decisions) can be located within the Pennsylvania Bulletin. The Bulletin is organized in a similar way to the CFR, in that citations will give you a volume and a page number for that reference. Any permitting decisions must be announced within this publication and may, for most individuals, be the first exposure to the permit process in a specific situation.

DRAFTING A COMPLAINT
EXPLANATORY PAPER #1

Drafting a complaint can be serious business. Some complaints, mostly the overblown ones, can be sixty pages or longer. An effective complaint is usually much shorter, and on average CELDF complaints are from ten to twenty pages long. Complaints are the opening salvo of the oncoming legal battle. Complaints list the parties involved in a "caption" (located at the top of the page), state why the complaint is in this particular court, state the factual history of the case, who the parties are, what the claims are (what the plaintiff is alleging) and what remedies are being sought from the court. Finally, the complaint is signed by either the plaintiff or the plaintiff's lawyer.

The caption lists the plaintiffs first, then has a v. (for versus) and then lists the defendants who are being sued. Usually the very top middle of the first page also lists the court in which the complaint is being filed. For example:

In The United States Court of Appeals
For the Third Circuit

Sierra Club, Environmental Defense Fund :
       :
 v.      : Civ. Action No. ________
       :
U.S. Department of Transportation  :
 

Notice the colons to the right of the parties. Colons can be used, or slashes, or parenthesis (), any symbol that can separate the right from the left portions. On the right side of the caption is a space for the "docket number", this is the number that the court assigns the case when it is filed with the court, and this is how the court follows the case through the system, according to the number assigned to the case when it is filed.

Although different lawyers differ as to the order of the rest of the complaint, most attorneys place the next category "Parties" after the caption. Usually, this is designated with a Roman numeral, e.g. "I. Parties". Underneath the heading is a listing of who the parties are and what their roles are in the world. For example, according to our sample caption, our Parties section would look like this:

I. Parties

1. Plaintiff, The Sierra Club is a national organization incorporated in California which has over seven hundred thousand dues paying members. The Sierra Club pursues conservation and preservation of wild spaces.

2. Plaintiff, The Environmental Defense Fund is incorporated in New York and provides attorneys to litigants who are seeking to preserve open spaces.

3. Defendant, the U.S. Department of Transportation, is a U.S. Government agency.
________________________________________________________________

Notice the numbering on the side of each statement. This should be done throughout the complaint, because when the defendants answer the complaint, they will do so in reference to each numbered statement, denying or affirming each statement. The complaint, therefore, should be numbered consecutively throughout the document. As much information can be given about each party as one would want, but unnecessary information should be omitted.

The next section should be "Jurisdiction". This section tells the court why the complaint is being brought in that particular court. There are two types of courts -- state courts and federal courts. If the allegations in the complaint have only to do with state law, then only the state court can handle the complaint. If the allegations in the complaint have only to do with federal law, then only federal courts can handle the complaint. Most of the groundbreaking environmental laws in the past twenty years have been federal statutes, i.e. the Clean Air Act, the National Environmental Policy Act (NEPA), the Clean Water Act, the Endangered Species Act. Since this guide is mostly for practice in the federal courts, it will follow the two statutes that grant the federal district courts the power to hear certain cases. One is the "federal question" jurisdictional statute, and the other one is the "amount in question" jurisdictional statute.

The federal courts are permitted to hear these two types of cases -- federal questions and amount in controversy cases. Federal questions deal with cases that arise under federal law (e.g. the federal environmental statutes listed above). The amount in controversy simply states that if the claim is for over $50,000, and the plaintiff and defendant are from two different states (known as "diversity") then the claim can properly be brought in federal court. We'll concentrate on federal question jurisdiction, because that is how most "environmental" claims get to court. This section would look like this:

II. Jurisdiction

4. Jurisdiction in this case is invoked under the federal question jurisdiction of this court under 28 U.S.C. ¤1331.
_______________________________________________________________

Notice how we kept the consecutive numbering system begun in the Parties section of the complaint. Although the 28 U.S.C. ¤1331 stuff may look "greek", it is simply the statute that contains the federal question jurisdiction. In other words, this notation gives the reader the statutory "address" of where to find the law which supports the statement. The U.S.C. stands for "United States Code"  and is where all of the laws of the United States are bound for reference.

Now to the easier section of the complaint, the Factual History. This section consists of consecutively numbered statements that tell the story of how the case came to be litigated in this court. It begins at the date of the earliest occurrence that has relevance to the case being tried and it ends with the latest occurrence prior to the actual filing of the complaint with the court. Each statement should have a date attached to it to explain when the event occurred. For example, it may look something like this:

III. Factual History

5. On December 3, 1994, the Board of Supervisors voted 4-3 in favor of the construction of the highway.

6. On December 5, 1994, the Planning Commission announced that it opposed the construction of the highway.

7. On January 7, 1995, a public hearing was held at which 300 persons attended. Of these 300 individuals, 200 made written comments in opposition to the highway.
_________________________________________________________________

Keep up the consecutive numbering throughout the complaint and include in your factual history key facts or happenings that support your allegations later in the complaint. For example, if you are contending that the Environmental Impact Statement did not discuss alternatives to the action, as required to do so by the National Environmental Policy Act, you need to list the date which the EIS was issued and that it failed to mention alternatives. Depending upon the complexity of the case, this factual history can be extensive, but try not to include facts or happenings that are irrelevant to the case at hand. If in doubt, however, about whether a fact should go in our stay out, put it in.

The next section of the complaint is the most important one, and also the most complex one. This is where the actual allegations or "Counts" are made within the complaint. These will be the claims upon which the complaint is based, and this section informs the defendants as to what you are suing them for. Each numbered statement should contain the statute or regulation that was violated and how the law was violated by the defendants. These claims should be categorized by statute. For example: Count I could be for NEPA claims, Count II for Endangered Species claims, etc.  This section is where the research needs to be done, to find the statutory sections that were violated by the defendants and to be very specific about which of defendantÕs actions (or failure to act) violated the statute or regulation. For example, a sample section would look like this:

III. Claims

A. Count One: NEPA

21. The defendants violated the National Environmental Policy Act, 42 U.S.C. 4321 et seq. by not including a discussion of alternatives within the Environmental Impact Statement.

22. The defendants violated the National Environmental Policy Act, 42 U.S.C. ¤4321 et seq. by omitting a discussion of the environmental consequences of their proposed action.

B. Count II: Endangered Species Act

23. The defendants violated the Endangered Species Act, 16 U.S.C. ¤1531 et seq. by failing to request a Biological Opinion on the question of whether the project will have an adverse impact on the habitat of the Smooth Coneflower, a federally endangered plant species.
_________________________________________________________________

Notice the way the different counts are ordered, by statute, to make it simpler for the reader and the court to understand what you are suing for and what statute you are suing under. The "et seq." may look "greek" also. What this phrase means is "and the rest". The citations given for the ESA and for NEPA are for the beginning of the statute. The et seq. phrase simply means "and the rest of the statute." Otherwise, we could be here for days listing all the sections of the statute out. Notice how the claims set up the allegation, by pairing a section of law with a factual claim of how the section of law was violated by the defendants.

The final section of the complaint is the "Remedies" Section. This is where the plaintiff(s) asks for a remedy for the violations alleged. These remedies can include, but are not limited to, a request for an immediate halt to all work on the project, a request to stop work until after the case is heard, a request to redo an environmental impact statement, etc. Be creative, since this section gives you room to roam to fashion your own solution to the problem. A sample remedies section would look like this:

IV. Remedies Requested

The plaintiff requests the court to grant the relief below:

(a) Enjoin all planning and construction immediately and force the defendants to redo relevant portions of the Environmental Impact Statement;

(b) Award costs and reasonable attorney's fees to the plaintiffs;

(c) Any other remedy that the court deems adequate.
________________________________________________________________

Notice the section for costs and fees. This is very important because the court may be able to award you court costs, such as the costs to obtain expert witnesses and attorney's fees from which to pay the legal fees of the plaintiff(s). Also be sure to add a section such as (c) so that the court is also free to design their own remedy which may be satisfactory to the plaintiffs involved.

Finally, be sure to add a signature line after the Remedies Section. This should read: The above information is true and correct to the best of my knowledge. Signed ______. Include your name, address, and phone number for the court.

That's it! You've drafted your own complaint.

SERVICE OF PROCESS
EXPLANATORY PAPER #2
COMMUNITY ENVIRONMENTAL LEGAL DEFENSE FUND (CELDF)

     Service of Process can be incredibly confusing. This, in part, is due to the fact that many federal district courts have differing requirements for serving the defendants in an action. When we mention the phrase "service of process", it means that the plaintiff is delivering to the defendant a copy of the complaint and a "Summons" (which states that the defendant must undertake certain activities, such as filing an answer with the court by an appropriate deadline).

     Before filing the complaint with the Court, make sure that the plaintiff makes enough copies for the Court, the judge and the defendants. Count on one copy for the Court, one for the judge, one for each individual defendant (with two extras if the U.S. Government is being sued) and one for the plaintiff to keep. The Court, after filing the complaint, will stamp each copy of the complaint and return them to you, so that these can then be served onto each defendant. If in doubt about the number of copies, and method of service, contact the Clerk for this information.

     Usually, the plaintiff must serve each defendant separately. In addition, if the federal government is being sued, then the plaintiff must serve the United States District Attorney for that District and the U.S. Attorney General, in addition to the federal agency being sued. Most of these addresses can be gotten from the U.S. District Court Clerk where the complaint is filed. If not, most libraries have a reference section where these addresses are located.

     As for method of service, it used to be O.K. to serve everyone by registered mail. This was simple, because all the plaintiff had to do was to send a complaint and a summons to each party by mail. Now, the rules have changed. The U.S. District Attorney must be served personally (i.e. by hand) with the complaint and a Summons. Usually this is relatively simple because the U.S. District Attorney is located in the same building as the District Court. The U.S. Attorney General can still be served by mail, as can the federal agency being sued. In the case of state defendants, they can either be served in person (which can be a real pain, in terms of travel and cost) or they can be mailed a "Waiver of Service of Summons", in which they can waive the right to be served personally. With this Waiver must be sent a self-addressed envelope for them to return the form to you, and two copies of the Waiver form. Under the new rules, the defendant who receives this is under a duty to waive service. If this sounds unduly complicated, once again, ask the Clerk to clarify these requirements.

     Of course, the plaintiff has to prove that he has delivered or mailed the Summons and Complaint to each defendant. Any party other than the plaintiff can hand deliver the complaint to a party, and the plaintiff can send it to the defendants by certified mail. The party delivering by hand signs an affidavit available at the courthouse, and for service through Waiver, the plaintiff can wait for the form to come back before taking it to the courthouse as proof. Once again, use the Clerk if you become confused about service of process. They will be helpful to any potential plaintiffs.

     If done correctly, with a friend delivering the process to the United States District Attorney, and the rest done by Waiver (state defendants) or by certified mail (U.S. Attorney General and federal agency defendants), this can be accomplished cheaply and effectively.

 The defendant's time in which to answer the complaint, of course, begins from the time that they receive the service of process from the plaintiff, so expect the Answer to be filed from the defendants in 30 or 60 days from the date that service of process was completed.

Here is a summary in easy-to-follow form of the steps necessary to file the complaint:

(1) Complete the drafting of the Complaint.

(2) Make seven copies of the complaint (this will give you plenty of extras for the press).

(3) Take these copies of the complaint to the federal court.

(4) Pay $120 to the Clerk for the filing of the Complaint.

(5) Complete one Civil Cover Sheet (JS-44-C).

(6) Have the Clerk stamp the copies "filed" - they will keep one or two copies for the court.

(7) Fill out a Summons form for each defendant plus one for the court.

(8) If you are suing a state defendant, ask for a "Waiver of Service of Process Form". This will be mailed with the complaint to the state defendant with a self-addressed stamped envelope and a copy of the Summons.

(9) Hand deliver a copy of the complaint to the United States Attorney for that District with a copy of the Summmons.

(10) Mail a copy of the complaint to the Attorney General of the United States by certified mail with a copy of the Summons.

(11) Mail a copy of the complaint to the federal agency being sued by certified mail with a copy of the Summons.

You're Finished - Now, if you sent a Waiver of Service of Summons to the state defendant, make sure that the returned form is filed with the Court when you receive it back in the self-addressed stamped envelope.

THE ANSWER
EXPLANATORY PAPER #3
THE COMMUNITY ENVIRONMENTAL LEGAL DEFENSE FUND (CELDF)

The answer is the document that is sent back to the plaintiff from the defendant(s) that serves as a reply to the allegations made within the complaint. The answer will have an identical caption at the top of the page, and the heading below the caption will be entitled "Answer". The document will consist of individually numbered statements, corresponding to the numbered statements contained in the original complaint, and will affirm or deny each statement. Sometimes, the defendant, if they do not have the necessary information to affirm or deny, will state that they lack sufficient information to affirm or deny the allegation made.

Depending upon the court (whether state or federal), the time limits for the defendant to return the Answer to the plaintiff differs. If it is a state defendant (in most states), they have thirty days to reply to the complaint. In the case of a federal defendant, they have sixty days in which to reply to the complaint. Many times, the federal defendants will ask for an extension of this time limit in which to file the Answer, because they are backlogged by the number of complaints in their office and the number of staff available to handle the complaints. If an extension is asked for, it is customary to grant it. Not only will a denial of the request make the judge angry (who will see it as simply a worthless strategy), but if the plaintiff needs a delay of a deadline later on, the other side will be less apt to grant it at that time. This is the age old adage of the golden rule -- treat others as you would like to be treated in the future. Especially when it comes time to do the hard legal work of writing the briefs, the plaintiffs will appreciate an opportunity to have the extra time.

Accompanying the answer, most times, will be Motions to Dismiss for various reasons. The defendants, in their answer to the complaint, will list the several defenses that they intend to use during the course of the litigation. Some of these defenses will be "pre-trial motions to dismiss", or in other words, the defendants are trying to get the case kicked out of court prior to the time when the judge will have to hear the "merits" or the facts of the case. Getting the case kicked out at this stage saves the defendants tons of money and gets rid of a case that will otherwise become another one on the federal court backlog list. If given an opportunity and presented with a good enough reason, judges will dismiss the case because it reduces their case load.

One of the most popular pre-trial motions to dismiss is to dismiss due to "lack of standing". Standing, as covered earlier, simply means "standing to sue." In other words, not just anyone can walk into a courtroom and sue another party. The plaintiff must have a concrete interest in the case, and be concretely and adversely affected should the proposed project move ahead. In the complaint must be a clear enough explanation of why the plaintiff has "standing", otherwise the defendants will challenge this proposition through a motion to dismiss.

For example, in a highway construction case in which the plaintiffs are contending that the Environmental Impact Statement was faulty and deficient, they must show that if the highway were to be constructed, that they would be concretely affected by the construction. To do this, they would show that their land would be "condemned" or that the noise from the construction and use of the highway would interfere with their use of their land. An aesthetic interest, such as a "scenic view" that would be obstructed or forcing the plaintiff to view the highway, may be enough to satisfy "standing" requirements. The lead case for "aesthetic" standing is Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992), which stated that aesthetic interests may sometimes satisfy the "standing" requirements if the interests are concrete enough.

There is no need to respond to the Answer if it does not contain any of these pre-trial motions. If there is "new matter" (and it will be identified as such in the Answer), however, in the Answer, such as a counterclaim against the plaintiff or new information is brought up in the Answer that was not covered within the complaint, then the plaintiff can file a "Reply", which simply serves as an answer to the "Answer." In other words, the reply brief replies to the Answer in numbered statements that would affirm or deny the new matter information contained within the Answer. The "Reply" must have the caption at the top and the docket number. It is then filed with the court and served on the defendants in the same way that the complaint was filed on the defendants. If in doubt as to whether to prepare a "reply", draft one anyway. It is minimal cost and will be worthwhile in explaining your claims. A "reply" must be served to the defendants in the same methods as the complaint was originally served.

If pre-trial motions to dismiss are made within the Answer, then they must be replied to by the plaintiff. Usually, these motions simply demand a factual answer. For example, a challenge that the plaintiff lacks standing to sue in a highway action would demand a response of how the plaintiff will be affected -- i.e. by having land that would be condemned, by being effected by the noise from the highway, or the smell etc. In other words, very rarely will law need to be researched for this section. Of course, if other motions are made that include law, then law will need to be placed within this Motion.

Any Motions made by the plaintiff in response to pre-trial motions to dismiss by the defendant should include the caption, the docket number, and a title of "Motion in Opposition to the Motion to Dismiss". The Motion itself is usually a one or two page document that lists the key points being made in opposition to the Motion to Dismiss. Once again, these should be numbered and be relatively short. It is the Brief that should outline in detail why the Motion to Dismiss should not succeed. The Brief is a separate document that has a caption, docket number, and a title such as "Brief in Support of the Motion in Opposition to the Motion to Dismiss". Whew! In other words, the Brief is used as a support mechanism for the conclusory points made in the Motion. Both of these, when finished, need to be filed with the court (dropped off and time stamped) and a copy served onto the defendants.

In addition, if you are making factual assertions (such as the plaintiff lives 500 feet from the edge of the right-of-way for the highway), include an affidavit from the plaintiff that this is true. An affidavit is simply a piece of paper in which the person giving the statement types out the statement, signs it, and has it notarized. It is then appended to the Brief.

Depending upon the type of pre-trial Motion to Dismiss made, there may be an "oral argument" that will be held by the judge on the Motion. The court will notify you of the time and date of this argument. An important point to be made throughout this discussion, however, is to keep in touch with the Clerk at the courthouse to keep up to date on the progress of the case. Sometimes, mail gets lost or misplaced, and phone calls are never made and therefore, you are not apprised of the status of the case. KEEP in TOUCH with the court to avoid any misunderstandings or missed trial dates. Always have the docket number handy and other relevant information that will allow the Clerk to track down the status of your case.

At oral argument, you will be asked to defend the points that you have made in your Motion and Brief. The judges may ask questions of you. Be prepared with a summary of your argument and be prepared to answer questions from the judge. Usually, you will be given ten to fifteen minutes to argue. The movant of the original Motion to Dismiss (in our sample case, the defendant) will go first and may reserve time to rebut your statements. The plaintiff will go second and can respond to anything said by the defendant. The judge will make a decision within the next several days. If the Motion to Dismiss is granted, the case is thrown out. If the Motion to Dismiss is denied, then the case continues down the rickety track towards trial.

If the plaintiff makes it past this stage, the complaint becomes a serious threat to the defendant or defendant agencies. The plaintiff should be prepared, at this point, to invest substantial time in the preparation of the case for the final stages, in which the law (case law and statutes) becomes increasingly important.

THE ADMINISTRATIVE RECORD
DISCUSSION PAPER #5

National Environmental Policy Act (NEPA) cases, unlike other types of litigation, involves the introduction of only what is called the Administrative Record for the project being challenged. The Administrative Record consists of all papers, documents, memoranda, and studies that were used by the agency to make a decision concerning the proposed project. This Record will include letters to the agency, internal office memoranda, scientific reports, and other research surveys. The entire case will be litigated on the basis of what is contained within the Administrative Record.

The reasoning for this rule is simple: the Plaintiff in the NEPA case is arguing that the decision to move forward with the project was "arbitrary and capricious", or more simply - was the wrong decision to be made by the agency. The Court, therefore, is only empowered to examine the information that was available to the agency prior to the decision to move ahead with the project.

The use of the Administrative Record as the sole basis for the litigation is both good and bad. It is good because it allows the Plaintiff to examine the same record that will be argued by the Defendant agency in the case. This means that the litigation will be inexpensive, and all materials will be provided by the agency to the Plaintiff. It is bad because the Plaintiff may wish to show that the Environmental Impact Statement is deficient in some fashion. To accomplish this showing, the Plaintiff would, of course, be forced to bring in an "expert" or an additional scientific study to dispute the information contained within the EIS.

The good news is that most courts will allow the Plaintiff to introduce this additional information as long as the affidavits or studies are introduced by the Plaintiff to show that either (1) alternatives to the project were not considered adequately, or (2) that the EIS failed to discuss an important environmental consequence or impact.

During the early stages of the litigation, the Plaintiff will have the ability to "supplement" the Administrative Record with any information that he/she feels is missing from the Administrative Record. The Plaintiff will usually supplement the Administrative Record if he notices that letters sent to the agency were not included in the document or other materials that were submitted to the agency were not included within the Administrative Record.

The time limits to supplement the Record will be stated within the document produced by the court that will inform you of the schedule for the litigation. To make a Motion to Supplement the Administrative Record, simply follow the directions for preparation of a Motion in Opposition to a Motion to Dismiss. In other words, place the caption at the top of the paper, the title "Motion to Supplement the Administrative Record" in the middle of the page, and the arguments for supplementation below. A copy must be mailed to the Defendant, and two copies filed with the court.

DISCOVERY
EXPLANATORY PAPER #6

Discovery is simply the term given to the exploration by the plaintiff of certain issues, questions, and documents of the defendants. Through discovery, the plaintiff can ask questions of the defendant (called "interrogatories") and request any documents from the defendant (called "request for document production"). Discovery is a wonderful tool through which to retrieve information from the defendants that can help build a stronger case for the plaintiffs. In addition, discovery rules are relatively liberal -- if the request is aimed at uncovering information that is relevant to the case, it is allowable. Direct interviews with the defendants (called "depositions") can also be used, but these entail a good bit of cost, because a court reporter must be present and a room must be available, etc. The information gained through a deposition can usually be acquired through the Interrogatories, the only difference being that depositions are "live" and interrogatories are "on paper".

Interrogatories are simply written questions that the defendants must answer. To prepare interrogatories, simply place the caption and docket number on top of a page and list as a heading, "Interrogatories". Then list the questions with a consecutive number, and leave space for the defendant to answer the question. Interrogatories do not need to be filed with the court, they only need to be served upon the defendants from which the answers are sought. Try not to make the answers too long, (i.e. Please list all phone conversations with the Harrisburg Authority within the last five years), otherwise, the defendant will refuse to answer on the grounds that the answer would be too lengthy and it would be too "arduous" to discover the full answer.

Make the questions short and to the point. Document requests can be used to request any documents within the defendant's possession. This can include papers, photographs, faxes, computer disks, recordings, etc. Once again, make the document request somewhat focused, to avoid the complaint by the defendant that the request is too "arduous" for them to retrieve. The document request should be set up in the same way as the Interrogatories -- on a sheet of paper with the caption and the docket number at the top. The heading should read "Request for Document Production" and each document sought should be consecutively numbered. Once again, this does not have to be filed with the court, it simply needs to be sent by certified mail to the various defendants from which document production is sought.

Many times, in environmental cases, the information sought by the plaintiffs is contained within a voluminous "file" that is filled with all of the information concerning the activity or entity being opposed. For example, CELDF litigated a case against an Incinerator in Harrisburg, PA. We sued the State Department of Environmental Resources based their approval of a permit for continued operation of the Incinerator. When we asked for documents on discovery, the DER attorneys replied in their answer to our Discovery Motion that the DEP file on the Incinerator would be "made available to us" at a certain time and location. We then went to DER headquarters and began digging through the Incinerator files. A copy machine is usually made available to the plaintiffs, (for cost per page) and we were able to retrieve all types of information that we would not have located if the file had not been made available to us. This availability of files can be a boon for environmental plaintiffs, since they can retrieve information that would otherwise be unavailable.

A new federal rule was promulgated recently, Rule 26, which establishes a framework for Discovery requests, scheduling conferences, etc. Rule 26, which can be found in the Rules of Civil Procedure within the United States Code Annotated (U.S.C.A.). Rule 26 is entitled "General Provisions Concerning Discovery; Duty of Disclosure." The Rule covers what is called "automatic discovery", which is the production of material and information by both sides of the litigation to each other without waiting for a formal discovery request. This information is due ten days after a meeting between the two parties. This information must include the name, address, and telephone number of anyone that might have relevant information concerning the case, a copy of or description of all documents or things in the possession or control of the party that is relevant, and documents signed by experts to be used by both parties which contain the opinions that they will give at trial. In addition, this list of experts must  include a list of exhibits to be used by the expert, a list of his publications in the last ten years, compensation to be paid for the expert, and a listing of cases in which the expert has testified in the previous four years. In addition, the party must identify the witnesses that they will use and the exhibits to be used by the witness.

There is also a good chance that the District Court has "opted out" of the operation of Rule 26. This will be stated in the Pre-Trial Order that will be issued to the Plaintiff within days after the complaint is filed. If the Court has opted out of the Rule, many provisions of the Rule will not be applied.

Of course, this listing looks intimidating, until one realizes that NEPA cases and other environmental cases rely solely upon the administrative record. In many of these cases, evidence outside of that contained within the Administrative Record is ruled not admissable by the court. Even in the absence of these restrictions, the plaintiffs in NEPA cases will seldom have more than one or two experts, who are usually working for free for the plaintiffs, who have no money in the first place. The list required by Rule 26 can then be easily composed for these small numbers of expert witnesses. In addition, the names and addresses of all the plaintiffs and anyone else that may have useful information should be included in this listing.

Also, it has become a common practice for the federal and state agencies to simply make a Motion that dispenses with all the provisions of Rule 26. This allows the party to determine the best course of the litigation and the schedule under which it should be litigated.

Everything obtained through Discovery can be used in the Brief which will be written at the very end of the case.

SCHEDULING CONFERENCE
EXPLANATORY PAPER #4

*Note: Only Applies to those District Courts that have not waived Rule 26 provisions.

Once the pre-trial motions to dismiss have run their course, and oral argument has been resolved in favor of the plaintiff, the next activity in the courts will be the scheduling conference, which in most federal cases will be held ninety days after the complaint is filed with the court.

Rule 26, a new rule that has been added to the Rules of Civil Procedure and which can be found within the United States Code Annotated (U.S.C.A.) highlights the process through which the scheduling conference will occur. Under Rule 26 (f), entitled "Meeting of Parties; Planning for Discovery", the parties must agree to meet at least fourteen days prior to a scheduling conference. This would mean at least prior to the seventy-sixth day after the filing of the complaint. The purpose of this meeting is to plan and schedule for discovery and to explore the possibilities for a prompt settlement or resolution of the case. In the absence of a settlement, a discovery ÒplanÓ must be developed by the parties.

The purpose of this earlier meeting and the scheduling conference is to head off the lawsuit by forcing the parties to settle with the judge being the "mediator". Both sides are expected to come to the scheduling conference with some kind of compromise in mind to make a settlement possible, if settlement was deemed unacceptable in the earlier meeting.

Therefore, the plaintiffs should walk into both the meeting and the scheduling conference with something in mind that they would be willing to compromise on. If the hoped for result is a cancellation of the project as planned, then the plaintiffs should set their sights on settlement for a remand of the entire project back to the drawing board for the preparation of a new Environmental Impact Statement and state in the scheduling conference that this is their intended goal. The bargaining must simply be in good faith, and does not mean that the plaintiffs must compromise at this point, especially if they feel that they have a good case behind them.

The other purpose of the scheduling conference, of course, is to set dates for both parties to have briefs submitted to the court, and to set oral argument schedules for the final stages of the case -- the Summary Judgment. The judge will negotiate with both sides to fix the calendar for the case -- when the deadline for all "discovery" is due, when summary judgment briefs are due, and when the oral argument will be set for.

Pro Se plaintiffs, at this stage of the game, should try to wrangle for as much time as possible, since as a pro se plaintiff, it will take extra time to attempt to handle the legal issues involved, and to fully draft a summary judgment brief, which must contain law from the Circuit within which the case is being litigated, along with factual conclusions drawn from prior cases (known as case precedent.)

SUMMARY JUDGMENT BRIEF
DISCUSSION PAPER #7

There are two documents that will be filed to end the case. The first is a Motion and a Brief for Summary Judgment, and the second will be a Reply Motion and Brief in Opposition to Defendant's Motion for Summary Judgment.

The Summary Judgment Brief represents the final stage in the litigation. The Brief is the final repository for arguments to be made to the judge concerning the litigation. The Plaintiff usually files this document first, the Defendant then files theirs, and then, both sides receive an opportunity to reply to the Summary Judgment document filed by the other side.

The Summary Judgment Brief will lay out each argument that is being made and will support this argument with statutory language (drawn from NEPA and its regulations) and caselaw (language from cases that is favorable to the Plaintiff's position). The Reply to the Defendant's Summary Judgment Brief will argue against the arguments made by the Defendant and produce supporting caselaw and statutes against their side.

To accomplish the drafting of the Summary Judgment Brief, the Plaintiff should be intimately familiar with other cases in that Circuit in which decisions have been made that support the Plaintiff's position in the present litigation. In other words, the Plaintiff should show that other courts have decided in the Plaintiff's favor in situations that are similar to the one presently being argued. This is the crux of the case, to convince the Judge that other cases have been decided favorably for the Plaintiff under similar circumstances.

A listing of cases in the Third Circuit (Pennsylvania is in the Third Circuit) has been appended to this pro se booklet. Plaintiffs must include caselaw and have a firm understanding of how these cases have been decided and what the facts were in each case that applies to their situation. Assistance with the Brief can be rendered by the Community Environmental Legal Defense Fund (CELDF), who will complete some of the specific research for the citizen plaintiffs.

Also appended to this booklet is a sample table of contents to be used for a Summary Judgment Brief. This should give the Plaintiff a good overview of how to assemble and submit the document for the best chance of success.

ORAL ARGUMENT
DISCUSSION PAPER #8

Oral argument is a term used to describe the situation in which the Court needs discussion from both sides of the lawsuit to determine what the outcome of a particular Motion or the entire case should be. Although oral argument may be required for some of the pre-trial motions, i.e. Motions to Dismiss, the main oral argument will occur at the conclusion of the case, and will be based on the Summary Judgment Briefs filed by both sides of the lawsuit.

In most oral argument situations, the Plaintiff and Defendant will each be given 30 minutes within which to state their claim (this may be enlarged or shrunken depending on the Judge). The Plaintiff should attempt to summarize the claims presented in their Summary Judgment Brief, using their strongest arguments first, and should seek to make an impression upon the judge of the importance of the case at hand.

The Plaintiff will present their argument first, followed by the Defendant. The Plaintiff will then be given the opportunity to rebut the Defendant's argument, but only if the Plaintiff has reserved some of the time allotment at the beginning of his/her oral argument. Rebuttal time is very important - it gives the Plaintiff an advantage in rebutting some of the Defendant's strongest arguments.

The Plaintiff must be prepared to answer a barrage of questions from the Judge. These oral argument periods are not periods of time in which the Plaintiff will be allowed to read their argument from notecards. These are periods of time in which the Judges will ask very specific questions of the Plaintiff concerning the lawsuit. The Plaintiff must be prepared to answer factual questions as well as those based on the caselaw being used in the Brief.

A good tool for use in oral argument is to buy a plain manilla folder, open it up, and tape index cards to the left side of the open folder. These index cards can contain the facts of the cases dealt with in the oral argument, and the findings or holdings of each case. This helps to keep the cases straight and could prove helpful during oral argument if the judge asks about a particular case.

After the Oral Argument, the Judge will make a decision on the case within the next several weeks. Unless the Plaintiff intends to bring an appeal of the decision, this represents the final stage of the litigation.

National Environmental Policy (NEPA) Cases in the Third Circuit

1. NEW JERSEY v. LONG ISLAND POWER AUTH., No. 93-5613, UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT, 30 F.3d 403, December 1, 1993, Argued,    July 19, 1994,
Filed

2. NATURAL RESOURCES DEFENSE COUNCIL v. TEXACO REF. & MKTG., No. 89-3684, UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 906 F.2d 934; April 4, 1990, Argued,   June 20, 1990, Filed

3. LIMERICK ECOLOGY ACTION, INC. v. UNITED STATES NRC, Nos. 85-3431, 85-3444,
85-3606, 86-3314, 87-3190, 87-3508, 87-3565, UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT, 869 F.2d 719; February 23, 1988, Argued,   February 28, 1989, Filed, As Amended April 25,1989.

4. Dunn v. United States, No. 86-3763, UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT, 842 F.2d 1420;   July 14, 1987, Argued,   March 23, 1988, Filed

5. FAIRVIEW TWP. v. UNITED STATES EPA, No. 84-5688, UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT, 773 F.2d 517;  June 11, 1985, Argued,   September 23, 1985

6. CITIZENS COUNCIL OF DELAWARE CTY. v. BRINEGAR, Nos. 83-1669, 83-1697, UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 741 F.2d 584;  May 21, 1984, Argued,   August 1, 1984, Decided

7. MORRIS CTY. TRUST v. PIERCE, No. 82-5656, UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT, 714 F.2d 271;   June 7,1983, Argued,   July 29, 1983

8. HOVSONS, INC. v. SECRETARY OF THE INTERIOR OF THE UNITED STATES OF AME, No.
81-2580, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 711 F.2d 1208; June 24, 1982, Argued,   July 13, 1983, Decided

9. TOWNSHIP OF SPRINGFIELD v. LEWIS, No. 82-5445, UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT, 702 F.2d 426;   October 18, 1982, Argued,   March 15, 1983, Decided

10. CAPE MAY GREENE, INC. v. WARREN, Nos. 82-5203, 82-5326, UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT, 698 F.2d 179;  October 22, 1982, Argued,   January 10,
1983

11. TOWNSHIP OF LOWER ALLOWAYS CREEK v. PUBLIC SERV. ELEC. & GAS CO., No.
81-2335, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 687 F.2d 732 June 9, 1982, Argued; July 17, 1981, Dated,  August 27, 1982

12. WESTINGHOUSE ELEC. CORP. v. UNITED STATES NRC,  Nos.  78-1188, 78-1189,
78-1204, 78-1892, 78-1894, 78-1895, 78-1993, 78-1994, UNITED STATES COURT OF
APPEALS, THIRD CIRCUIT, 598 F.2d 759;  February 13, 1979, Argued,   April 19, 1979, Decided
 
13. CONCERNED CITIZENS OF BUSHKILL TWP. v. COSTLE,  No.  78-1745, UNITED STATES
COURT OF APPEALS, THIRD CIRCUIT, 592 F.2d 164;  December 13, 1978, Argued,   January 9, 1979, Decided

14. NAACP v. MEDICAL CTR., INC.,  No.  77-2369, UNITED STATES COURT OF APPEALS,
THIRD CIRCUIT, 584 F.2d 619;  June 8, 1978, Argued,   August 18,1978, Decided

15. NAACP v. MEDICAL CTR. INC., No. 77-2369, UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT, 584 F.2d 619;   Argued June 8, 1978,   August18, 1978

16. SHIFFLER v. SCHLESINGER, No. 76-1876, UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT, 548 F.2d 96;   October 19, 1976, Argued,   January 12, 1977, Filed

17. CONCERNED RESIDENTS OF BUCK HILL FALLS v. GRANT, No. 75-1360, UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT, 537 F.2d 29;   January 5, 1976, Argued,   June 1, 1976, Filed

18. VIRGIN ISLANDS TREE BOA v. WITT, Civil No. 1996/08, UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS, DIVISION OF ST. THOMAS AND ST.
JOHN, 918 F. Supp. 879;  February 15, 1996, DATED

19. CLAIRTON SPORTSMEN'S CLUB v. PENNSYLVANIA TURNPIKE COMMN., C.A. NO. 94-1114,
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, 882 F.
Supp. 455;   April 3, 1995, Decided

20. PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY v. FHA, CIVIL ACTION NO.
94-4292 (AJL), UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, 884
F. Supp. 876;   March 20, 1995 Decided,   March 20, 1995, FILED

21. DON'T RUIN OUR PARK v. STONE, 3: CV-90-1115 (McClure), UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, 802 F. Supp. 1239; September 9, 1992, Decided,   September 9, 1992, Filed

22. GETTYSBURG BATTLEFIELD PRESERVATION ASSN. v. GETTYSBURG COLLEGE, CIVIL
ACTION NO. 1: CV-91-1494, UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF PENNSYLVANIA, 799 F. Supp. 1571; July 2, 1992, Decided,   July 2, 1992, Filed

23. NEW HANOVER TWP. v. UNITED STATES ARMY CORPS OF ENGRS., Civil Action No.
91-2705, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA,
796 F. Supp. 180;  June 1, 1992, Decided,   June 2, 1992, Filed

24. DON'T RUIN OUR PARK v. STONE, No. CV-90-1115, UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, 749 F. Supp. 1388; September 14, 1990, Decided,   September 14, 1990, Filed

25. DON'T RUIN OUR PARK v. STONE, No. CV - 90-1115, UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, 749 F. Supp. 1386;  August 31, 1990, Decided,   August 31, 1990, Filed

27. CTY. OF BERGEN v. DOLE,  No. 82-4065, UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY, 620 F. Supp. 1009,   October 10, 1985

28. VINE ST. CONCERNED CITIZENS, INC. v. DOLE,  No. 84-6310, UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, 630 F. Supp. 24,
August 28, 1985

29. CITIZENS COUNCIL OF DELAWARE CTY. v. BRINEGAR,  Nos. 84-3951, 81-4627,
74-925, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA,
619 F. Supp. 52;  March 15, 1985

30. VINE ST. CONCERNED CITIZENS, INC. v. DOLE,  No. 84-6310, UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, 604 F. Supp. 509; February 28, 1985

31. AZZOLINA v. USPS, Civ. No. 83-4867 (AET), UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY, 602 F. Supp. 859,   February 26, 1985

32. PENNSYLVANIA PROTECT OUR WATER & ENVTL. RESOURCES v. APPALACHIAN REGIONAL
COMMN., Civ. A. No. 82-0258, UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA, 574 F. Supp. 1203; September 20,1982

34. GLOUCESTER CTY. CONCERNED CITIZENS v. GOLDSCHMIDT, Civ. A. No.  80-2524,
UNITED STATES DISTRICT COURT, DISTRICT OF NEW JERSEY, 533 F. Supp. 1222;   March 10, 1982

35. LAKE ERIE ALLIANCE FOR the PROTECTION OF the COASTAL CORRIDOR v. U. S. ARMY
CORPS OF ENGRS., Civ. A. No.  79-110 Erie, UNITED STATES DISTRICT COURT, WESTERN
DISTRICT OF PENNSYLVANIA, 526 F. Supp. 1063; November 23, 1981

36. DELAWARE WATER EMERGENCY GROUP v. HANSLER, CIVIL ACTION NO. 80-4372, UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, 536 F. Supp. 26; August 17, 1981, Decided,   August 17, 1981, filed

39. LAKE ERIE ALLIANCE v. UNITED STATES ARMY CORPS OF ENGRS., Civ. A. No.
79-110B Erie, UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF PENNSYLVANIA,
486 F. Supp. 707; March18, 1980

41. TOWNSHIP OF PARSIPPANY-TROY HILLS v. COSTLE, Civ. A. No.  78-1174, UNITED
STATES DISTRICT COURT, DISTRICT OF NEW JERSEY, 503 F. Supp. 314;  November 27, 1979

42. BOSCO v. BECK, Civ. A. No.  79-1865, UNITED STATES DISTRICT COURT, DISTRICT
OF NEW JERSEY, 475 F. Supp. 1029; August 30, 1979

43. ORGANIZATIONS UNITED FOR ECOLOGY v. BELL, Civil No. 77-729, UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, 446 F. Supp. 535;  January 30, 1978

44. PHILADELPHIA COUNCIL OF NEIGHBORHOOD ORGS. v. COLEMAN, Civ. A. No. 77-180,
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, 437 F.
Supp. 1341; September 12, 1977

45. TOWNSHIP OF DOVER v. USPS, Civ. A. No. 76-789, UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY, 429 F. Supp. 295;  March 16, 1977

46. NAGE v. RUMSFELD, CIVIL ACTION NO. 76-1430, UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA, 418 F. Supp. 1302; July 30, 1976, Decided

47. MANSFIELD AREA CITIZENS GROUP v. UNITED STATES, Civ. No. 76-177, UNITED
STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, 413 F. Supp. 810,
  May 12, 1976

48. BUCKS CTY. BD. OF COMMRS. v. INTERSTATE ENERGY CO., Civil Action No. 74-2758
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, 403 F.
Supp. 805;  November 17, 1975

49. DELAWARE RIVER PORT AUTH. v. Tiemann, Civ. A. No.  75-1219, UNITED STATES
DISTRICT COURT, DISTRICT OF NEW JERSEY, 403 F. Supp. 1117;   November 12, 1975

50. HILL v. COLEMAN, Civil Action No. 4499, UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF DELAWARE, 399 F. Supp. 194;  July 18, 1975

51. CONCERNED RESIDENTS OF BUCK HILL FALLS v. GRANT, Civ. No. 74-1164, UNITED
STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, 388 F. Supp. 394;
 January 24, 1975